CASE COMMENT:- A critique of Deelip Singh v. State of Bihar, AIR 2005 SC 203.

FACTS OF THE CASE:-The victim girl lodged a complaint to the police on 29.11.1988 i.e., long after the alleged act of rape against the appellant here. By the date of report she was pregnant by six months. The victim girl alleged that she and accused were neighbours and fell in love with each other and one day, the accused forcibly raped her and later consoled her saying that he would marry her, that she succumbed to the entreaties of the accused to have sexual relations with him, on account of the promise made by him to marry her and therefore she continued to have sex with him on several occasions. After she became pregnant, she revealed the matter to her parents. Even then the intimacy continued to the knowledge of the parents and other relations who were under the impression that the accused would marry the girl but the accused avoided to marry her and his father took him out of the village to thwart the bid to marry. The efforts made by the father to establish the marital tie failed and therefore she filed complaint after waiting for some time.

With the help of the evidences adduced in the form of school certificate and medical expert’s opinion regarding the age of the victim, prosecution established that by the date of commission of the crime the victim was aged less than 16 years in which case her consent becomes immaterial. The trial Court accepted the arguments of the prosecution and found that the girl was aged less than 16 years at the relevant point of time. The trial court held that it was case of having sexual intercourse against the will of the victim girl or without her consent. If so, irrespective of the age of the girl, the offence is deemed to be committed. Trial Court convicted the appellant here under Section 376 IPC for committing rape of a minor girl, and sent him to rigorous imprisonment for a period of ten years. `The High Court upheld the conviction but modified the sentence to seven years.

Section 90:- Consent known to be given under fear or misconception:- A consent is not such a consent as it intended by any section of this code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has a reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person:- if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child:- unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

“Section 375[1]: A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

Firstly- Against her will.

Secondly, – Without her consent.

Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly – With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly – With or without her consent, when she is under sixteen years of age.

Explanation- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”.

Section 376[2]:- (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

ISSUES:-

The following issues were addressed by the Supreme Court in this case:-

Was the victim girl less than 16 years of age on the date of the first sexual intercourse which the appellant had committed?

Whether the appellant had sexual intercourse with the victim girl against her will, and is guilty under the clause first of section 375?

Whether the appellant had sexual intercourse with the victim girl without her consent, and is guilty under the clause secondly of section 375?

Can sexual intercourse consent to which has been obtained by making a false promise of marriage, be rape within the meaning of Section 375 of the Indian Penal Code, 1860?

JUDGEMENT:-

The Supreme Court on re-appreciation of the evidences found that neither was the victim girl a minor at the relevant time nor did the appellant have sexual intercourse with the prosecutrix ‘against her will’. The charge of rape was then sought to be pressed against the appellant on the ground that he had obtained consent to sexual intercourse by making a false promise of marriage and such a consent, covered by the expression “misconception of fact”, is vitiated by Section 90. The Supreme Court, accepting this contention, ruled that a false promise of marriage is covered by the expression “misconception of fact” and a consent thus obtained is vitiated by Section 90; accordingly, it was held that sexual intercourse, consent to which is obtained by making a false promise of marriage, is rape within the meaning of Section 375 of I.PC. However, in the instant, the SC found it to be a case of breach of promise and not false promise and acquitted the appellant of the charge of rape under Section 376 of the I.P.C. Appellant paid a sum of Rs. 50,000 by way of monetary compensation irrespective of acquittal.

CASE COMMENT:-

In the instant case, the Supreme Court rightly held that the accused is not guilty of rape under Section 375 of IPC. The court held that there is no evidence which gives rise to an inference beyond reasonable doubt that the accused had no intention to marry her at all from the inception and that the promise which he made to marry the victim girl at the beginning was false to his knowledge. All the facts and circumstances show that the intention of the accused was genuine which only and only did not materialise due to the family pressure of the accused. Regarding the various issue court rightly held that this case was a breach of promise to marry rather than a case of false promise to marry.

The first and foremost issue before the court was to find out whether the victim girl was less than 16 years of age on the date when the rape was committed on her. The prosecution adduced evidences in the form of school certificate and the medical expert’s opinion to establish that the victim girl was aged less than 16 years by the date the rape was committed. In this case her consent becomes immaterial. Supreme Court found that the certificate had no evidentiary value as it was not proved by any competent witness, and as far as the medical report was concerned it was found that her age was somewhere between 16 to 17 years. Supreme Court said that all these evidences cannot be sustain so it cannot be established that the girl was aged less than 16 at the time of commission of the rape. So, the accused was not guilty under the clause sixthly[3] of Section 375. Court was correct in its opinion in this regard. Had this been the case before the Court after the Criminal Law Amendment Act, 2013 the accused might have been held guilty in this case. This issue of age was the crux in this case and in all cases of this kind. When it was proved that the victim had a valid age of consent then all other questions were raised which are discussed below.

The other issue before the court was whether the accused had sexual intercourse with the victim against her will and is guilty under the first clause of section 375. The victim deposed that the first sexual intercourse took place against her will and after that she became a consenting party to it. There were no credentials in the version of the victim because she gave different statements in the court and the FIR respectively. The Court found with the help of available evidences that there was nothing to show that the sexual intercourse was against the will of the victim or it was performed forcibly. The accused was also not held guilty under the clause firstly of section 375.

The court also considered that whether the accused can be held guilty under clause secondly of Section 375 if the sexual intercourse was committed without the consent of the victim. Sometimes will and consent overlap and it can be said that the act done against the will of the person was also an act done without consent. It is apparent that the prosecution will have to prove that force was used or that there was resistance if the act was against her will. If it is without her consent, he would have to prove that she did not consent to the sexual intercourse. One must, however note that very act done against the will of a person is done without her consent, but an act done without her consent is not always against her will. There is no exhaustive definition of consent in positive terms in IPC, but what cannot be regarded as consent is defined in Section 90 of IPC, which reads as follows:-

“Consent known to be given under fear or misconception: – A consent is not such a consent as is intended by any section of this code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows or has reason to believe, that the consent was given in consequence of such fear or misconception..”

The other question which came up accidentally for debate in this case is whether the consent given by a woman believing the man’s promise to marry her is a consent which excludes the offence of rape.

In the given fact situation, when charge of rape was then sought to be pressed against the appellant on the ground that he had obtained consent to sexual intercourse by making a false promise of marriage and such a consent, covered by the expression “misconception of fact”, is vitiated by Section 90. The SC, accepting this contention, ruled that “A promise to marry without anything more will not give rise to ‘misconception of fact’ within the meaning of Section 90, it needs to be clarified that representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts, it is established that at the very inception of the making of the promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was mere a hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause secondly”. However, in the instant fact situation, the SC found it to be a case of breach of promise and not false promise and acquitted the appellant of the charge of rape under Section 376 of the I.P.C.

The present case was very rightly decided by the Supreme Court on the basis of given facts and circumstances, because there is no evidence which gives rise to inference beyond reasonable doubt that the accused had no intention to marry the victim and he made false promise to his knowledge. The main question of critique in this project is the ratio held by the court in this case i.e. the sexual intercourse consent to which has been obtained by the false promise of marriage, amounts to rape.

This question that whether the sexual intercourse consent to which has been obtained by the false promise of marriage amounts to rape or not has come up various times before Indian judiciary in the recent years. The question has been addressed by the Supreme Court in two cases, Uday v. State of Karnataka[4] and Deelip Singh v. State of Bihar[5]. While the former held that the abovementioned situation did not amount to rape, the latter case held to the contrary .My contention is that the Supreme Court has erred in Deelip and that Uday lays down the correct position in law: Sexual intercourse, consent to which is obtained by making a false promise of marriage, is not rape. The reasoning given in the case of Deelip is erroneous and that sexual intercourse, consent to which is obtained by making a false promise of marriage, is not rape, it is however not to suggest that the same might not be punishable under law. Thus, where a false promise of marriage is made and the same leads to “damage or harm to that person in body, mind, reputation or property”, the same might be punishable under Section 415 of the IPC for cheating. Apart from being punishable under criminal law, making such a false promise might also be actionable under civil laws.

It was held in the case of Uday that false promise is not covered within the expression “misconception of fact” in section 90, and this finding of the SC was reversed in the case of Deelip. The question of whether consent obtained by false promise is vitiated by Section 90 first came before the Calcutta High Court as a revision application in Jayanthi Rani Panda v. State of West Bengal[6]. In that case, the respondent was charged with rape under Section 376 of the I.P.C. for having sexual intercourse with the petitioner, consent to which was obtained by making a false promise of marriage. The lower court, acquitting the respondent, had ruled that Section 90 is not attracted, as a false promise is a not a fact and hence is not covered by the expression “misconception of fact” in Section 90. The Calcutta High Court, on re-appreciation of facts found that “it cannot be said that accused had no intention to marry the complainant” and that this is a case of “failure to keep a promise”. Thus, the Court found the present case to be that of breach of promise and not false promise and held the same not to attract Section 90. Further, the Court held that for Section 90 to be attracted, the fact misrepresented must be of immediate relevance and not pertaining to a “future uncertain date”, as in this case. On these grounds the Calcutta High Court rejected the petition and refused to convict the respondent under Section 376 for rape. In this case High Court, by observing that Section 90 can only be called when the court is assured that from the very inception the accused never intended to marry the victim, made a reference that in the case of false promise section 90 would be attracted.Re-reading of Uday’s case:-

The question of whether sexual intercourse, consent to which is obtained by making a false promise, is rape arose before the SC for the first time in Uday. In this case, the appellant had obtained the consent of the prosecutrix to sexual intercourse by making a promise to marry, which the lower court and the Karnataka High Court found to be false. Finding the promise to be false, the lower court held the consent thus given to be covered under “misconception of fact” and hence held the consequent sexual intercourse to be rape. On the Karnataka High Court confirming the holding of the lower court, the appellant- accused approached to the SC. The SC reasoned that “legal consent, which will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to understand and appreciate the nature of the act committed “and hence, sought to construe “misconception of fact” in Section 90 as misconception as to the nature and consequence of the sexual act. Further, the Supreme Court held that “false promise is not a fact within the meaning of the Code”. On these grounds the SC held that false promise is not covered within the expression “misconception of fact” with the result, that sexual intercourse, consent to which is obtained by making a false promise, is not rape.

In finding the above ratio, the SC in Deelip relied on the decision of the Madras High Court in In Re Jaladu[7], which interpreted Section 90 of the I.P.C. as “broad enough to include all cases of misrepresentation” with reference to which consent is given and which leads to “misconception of fact”. Deelip reread the judgement in Uday’s case and construed it as laying down the ratio only as regards only breach of promise and not false promise. This reading of Uday, made by Deelip is patently incorrect: One, Uday categorically held that “a false promise is not a fact within the meaning of the Code[the I.P.C]” and it is difficult to imagine how, a false promise not being a fact within the meaning of I.P.C. could still be “misconception of fact” within the meaning of Section 90 of the I.P.C; two, in Uday the finding of the lower court and the High Court was specifically that of a false promise, and with Uday not purporting to re-appreciate evidence, it must be assumed that it is on this basis that the ruling was passed. While Uday did observe the instant case was that of breach of promise, this observation was made after laying down the ratio and was presented as “another difficulty in the way of the prosecution”. Thus, with the SC in Deelip not finding it necessary to deal with the conflicting ratio of another two judge bench of the SC, the authority of the ratio laid down in Deelip is seriously compromised.

Common Law position:- It is an established principle of common law that consent to engage in sexual intercourse is vitiated due to fraud or misrepresentation only when the fraud or misrepresentation extends to the “nature or quality of the act in question” or to the “identity of the person”. This principle was laid down in the English case of R. v. Clarence[8], where the accused, suffering from gonorrhoea failed to disclose the same to his sexual partner and was tried for rape on the ground that the consent given by the sexual partner was vitiated by fraud. The court acquitted the accused in that case. Applying this principle, rape was held to be committed, when the accused had sexual intercourse with the prosecutrix by misrepresenting the act to be one which improves a person’s voice for singing[9], or when a medical man had sexual intercourse with the prosecutrix on the pretence of performing a surgery[10]. But in R. v. Linekar[11]rape was not held, when the accused promised to pay for sexual intercourse, but later refused to pay for the same. In the absence of any specific legislative intention to overrule common law, “misrepresentation of fact” in Section 90, when read with Section 375 must be given a construction which is compatible with this common law principle. It is submitted that in the context of the IPC, no such legislative intent to amend the common law position on consent vis-à-vis rape can be discerned, in the absence of which, the common law position must be reiterated. Thus, a misconception arising out of a false promise of marriage, having no bearing on the nature and consequences of the act of sexual intercourse in relation to which consent is given, would not be covered within the expression “misconception of fact”. Consequently, consent to sexual intercourse, given on the basis of a false promise of marriage, would not be vitiated and therefore, the consequent act of sexual intercourse would not amount to rape.

Incorrect interpretation of the word “consent” in Section 375:-

The golden rule of statutory interpretation has been stated as, “the words of a statute must prima facie be given their ordinary meaning.” Such a meaning cannot be departed from by judges “in light of their own views as to policy”. The rule has been applied consistently both by the courts in Britain and in India. “Consent”, according to the Shorter Oxford English Dictionary, means “agreement as to course of action.” Using this meaning of consent as the ordinary or grammatical meaning of the word, we find that where there is an offer of sexual intercourse, made by a man and accepted by a woman, leading to sexual intercourse, there exists an agreement as to a single course of action. That is, there exists an agreement to do what is desired by at least one party to the agreement. This being the case, it cannot be argued that consent to sexual intercourse has been vitiated by the fact that there exists a promise by one party to marry the other party. Using this rule as a guiding principle, we find that the Court in Deelip has committed a patent error in its interpretation of “consent” in Section 375 I.P.C. the interpretation of the term “consent” in Deelip is incorrect and violative of the primary rule of statutory interpretation since it fails to accord to the term its natural and ordinary meaning and thus departs from the stance taken by the courts in previous cases. Legislature should have used the word in that interpretation that least offends our sense of justice.

This case is a perfect example of judges substituting their own views as opposed to the law in the case. It is the view of the judges that in cases of sexual intercourse, consent to which has been based on a false promise of marriage, injustice is done to the prosecutrix and the accused has to be punished. This attitude of the judges can easily be discerned from a close reading of Deelip and in particular is clearly exemplified by the following passage in the judgment- “We cannot ignore the reprehensible conduct of theappellant, who by promising to marry the victim woman,persuaded her to have sexual relations and caused pregnancy.

The act of the accused left behind her a trail of misery, ignominy and trauma. The only solace is that she married subsequently”. The moral aspects of the case are entirely different because even if a court or a society disproves of the conduct of the accused in a criminal court, it would not be permissible to record a conviction unless the strict ingredients of law are satisfied.”